Liberalism, Democracy

Kill the Death Penalty

Even if we grant for the sake of argument that some people deserve to die, it does not follow that the state may be authorized to kill them. For a state to have the right to kill criminals, it must make decisions about guilt and hear appeals in a fair, competent, and reliable manner. It must have rules that reliably let the innocent–or those whose guilt is reasonably in doubt–go free. The American criminal justice system fails to meet these standards. Perhaps a government of smart angels should be granted the right to kill. We could debate that. But no state in America deserves any such right.

  • Anonymous

    I readily acknowledge that there are powerful philosophical arguments against the death penalty (and although most people on this site will disagree with me here, powerful arguments in its favor). But, this particular argument, based on unrelability, is not persuasive in my opinion. If the system is too unrelaible to condemn people to death it is also too unreliable to condemn them to life w/o possibility of parole or 25 years-to-life, etc.

    The usual response to this observation is that the death penalty is irreversible, so we risk killing the innocent. But all punishment is irreversible in a certain way. A innocent person might also be sentenced to life without parole, die in prison, and then be cleared of the crime. But there’s not much we can do about it then either, is there. Even the unfortunate person who spends 20 years in prison before being cleared cannot really be fairly compensated for this loss. Also, the very narture of the death penalty implies certain consequences, but I’m not clear why (even putting aside the prior point) reversibility should be dispositive with respect to its moral permissibility.

    • Hyena

      This is correct. The reversibility argument doesn’t make much sense here, at least unless we’re willing to start using an expected value calculation for punishment generally.

      • Anonymous

        Hey, Hyena, we agree on something! Let’s try not to make this a habit.

        • Hyena

          No, we should make it a habit.

      • Anonymous

        Why WOULDN’T we use an expected value as at least part of the calculation for whether we should have the death penalty? We use it for everything else — precisely because it is a rational way to reach reasonable conclusions about risks and costs. 

        • Hyena

          Because there will be a non-zero probability assignment to each allegation, causing the distribution of jail time in the population to flatten. Importantly, this does not mean that total jail time served goes down, only that it’s more evenly distributed.

          • Anonymous

            I do not think this answers my question. The question is, why not use the same tools to evaluate capital punishment that we use to evaluate other policies: we compare the potential benefit of the policy working as hoped against the risk of it failing and the severity of that failure? This is a fairly standard way of evaluating risk. Why should capital punishment be immune to this analysis? 

          • Hyena

            Okay. We’re not talking about the same thing, there are two separate issues: should we have a death penalty, how do we deploy it.

            Brennan’s argument is that all discussion of the death penalty can be set aside because the fact is that we cannot appropriately deploy it even if we find the death penalty to be the optimum punishment for some crimes. Because we can’t target it effectively, we can’t use it, basically.

            My point is that we can only use this argument if we’re willing to convert to outright Bayesianism because that does give us a language in which to talk about it. In particular, we can use expected value measures from the probability of guilt multiplied by the punishment (assumed best). This is inspired by Friedman’s move in “Why not just hang them all” where we reduce prison costs by imposing the death penalty probabilistically; we’re just shifting what we’re interested in, guilt rather than savings on punishment.

            You’re talking about cost-benefit analysis, which we should do but which is orthogonal to the arguments here.

    • Conchis Ness

      1. Whatever one’s view on the justice of the death penalty properly applied, there is presumably some level of unreliability such that it’s use becomes unjustified. So your argument relies on a claim that we have not yet reached that level of unreliability. Do you have a clear sense of just how unreliable the system would need to be before you would consider the death penalty unjustified? (The easiest way to specify this is presumably in terms of % wrongful executions.)
      2. It also seems reasonable to think that one would have a lower tolerance for unreliability the more severe the punishment. Amongst all the talk about reversibility (which I think/agree is a red herring) I can’t tell whether you disagree with this. Do you? If so, why?

      • Anonymous

        Your #1: “there is presumably some level of unreliability such that it’s use becomes unjustified. So your argument relies on a claim that we have not yet reached that level of unreliability.” No, my point is that the unreliablility argument works against all punishment, not just the death penalty. I am not making any empirical claim about the reliability/unreliability of our system.

        Your #2: If you start with the assumption that the death penalty is morally offensive, then you don’t need the non-reversibility argument to oppose it. If you start with the assumption that this penalty is morally acceptable, then the irreversibility point merely states the obvious. Of course it is irreversible, its the death penalty.  Thus, this feature of capital punishment doesn’t provide an independent reason for rejecting it, if you already think it is justified. A sentence of life w/o possibility of parole gven to an innocent man who dies in prison is also irreversible, so the degree of reversibility simply reflects the inherent nature of the punishment, not its moral status.

        In response to your last empirical point (in your edit), I have never read of capital punishment actually being carried out in less than a decade after the sentence was handed down, unless the inmate actually desires to have it applied. This delay is inevitable given the many avenues of state and federal appeals open to the convicted person. Yes, at the margin some people will be proven innocent after the 10-20 years of delay already built into the system, but I don’t know why this fact should be dispositive, when there are a variety of other ethical considerations that come into play.

        • Conchis Ness

          Mark – It feels like we’re talking past each other a little.

          To start with, it may be useful to clarify whether your claim is 
          (I) that the unreliability argument provides no additional weight to the case against the death penalty;  
          (II) that although the unreliability argument does provide some weight to the case against the death penalty, it need not be dispositive (i.e. the weight is not infinite).

          While I find (I) highly implausible, I can definitely buy (II). The real question then is how much weight should we give to the argument between none and infinite.

          What my questions were intended to do was Ito try to take things in stages to figure out where our actual disagreement is. Because you didn’t really answer them, I’m still a bit confused on this – can we try again?

          1. Can we agree that there is some level of unreliability in a justice system such that it would be unjust to hand out a given punishment, X? 
          (a) If not, why not?
          (b) If so, then accepting that the death penalty is currently ok requires you to claim that the current level of unreliability is not so bad as to make it unjust. (I suspect this would be less to do with an empirical claim about the reliability of the current system, than a principled one about how unreliable the system would need to get before you’d rule it out – hence my initial question.)

          2. It’s a separate question (I think) whether the unreliability threshold should be the same for all punishments. My argument is that it should not be, for two reasons:
          (a) Inflicting a more severe punishment on an innocent person is a greater injustice than inflicting a less severe punishment on them, therefore we should be less tolerant of mistakes the more severe the punishment.
          (b) Punishments that are equally severe if carried out in full, may nonetheless be less severe on average when they leave open a greater opportunity to correct mistakes before they are carried out in full.

          I’m potentially willing to accept that there’s not much empirical difference between a life sentence and a death sentence in terms of (b). However, I’d argue there’s still some difference, and in any event (a) still justifies treating the death penalty differently.

          There is potentially another reason to have different thresholds for different punishments: 
          2(c) a view that different punishments are more or less morally justifiable to begin with. On this basis, it seems legitimate for those who already question the death penalty to be more swayed by unreliability than those who are more confident that it is justified. Even so, I think 2(a) and 2(b) provide reasons for a different threshold even if the moral status of two punishments is otherwise identical.

          Do you accept any of 2(a), 2(b) and 2(c) – either in principle or in practice? If not, why not? Your main argument seems to be a denial of 2(b). I don’t think this works (see subsequent paras), but even if it does, it seems to me that you also need to deny 2(a) and 2(c) for your argument to work.

          On 2 (b) you state: ” If you start with the assumption that this penalty is morally acceptable, then the irreversibility point … doesn’t provide an independent reason for rejecting it.”

          If you start with the assumption that the death penalty is morally justified regardless of whether it is administered justly, then that fact that it is unjustly administered will not provide you with an independent reason to reject it.

          However, if you start with the assumption that the death penalty is justified, assuming it is justly administered, then the fact that it is unjustly administered clearly can provide an independent reason to reject it (at least as long as it continues to be unjustly administered). What we have been loosely calling ‘irreversibility’ is something that increases the chance of unjust administration (by reducing the chance of correcting mistakes), and therefore seems perfectly capable of strengthening the case against the death penalty. (At least in principle – as you note, there may be no difference in practice, but that is an empirical matter.)

          Wow, that was longer than intended.

          • Anonymous

            This is not my blog, and I only have so much time for this, so my response will probably be less comprehensive than you like. My claim is (I), in that I don’t think the reliability argument provides any reason for a person who supports capital punishment to change his/her position.

            I will try to clarify my position this way. Suppose an innocent person is sentenced to 10 years for manslaughter, serves his time, and then gets out and proves his innocence. That person has still lost 10 years of his life, and this is irreversible. While it might be possible to compensate him for this loss, the ten years are gone. Now, suppose the same person instead dies in prison, and then his relatives ultimately clear his name. The punishment is still irreversible, and the only difference in the two case is that you can’t compensate a dead man. Note that these examples do not involve the death penalty.

            Accordingly, to say to a proponent of capital punishment that he should change his/her view because this punishment is irreversible is simply to rely on the truism that it is impossible to compensate the dead. While this truism is true, it will cut no ice against the view that this punishment is justified on retributionist or other (e.g. deterrence) grounds. 

          • Mark, I don’t have strong views on this particular argument.  But I’m having one problem understanding your view.  You’ve pointed out several times that it is possible for an innocent person to be wrongly convicted, sent to jail, and die there.  If he dies in jail, it will be impossible to compensate him should his innocence later be discovered, just as it is impossible to compensate an innocent person who is wrongly executed.
            Your point, I take it,  is to suggest that there’s no significant difference in terms of “reversibility” between the death penalty and other punishments.  
            But couldn’t someone respond as follows.  Yes, it is true that for all kinds of punishment, there is a chance of wrongly convicting an innocent person.  And no punishment can be “taken back” – we can’t give a person back 10 years any more than we can bring him back from the dead.  And it is sometimes impossible even to compensate persons who are wrongly sent to jail, if they happen to die there.
            BUT.  If we kill someone, the chance that we will never be able to compensate them if we learn that they were innocent is 100%.  If we send them to jail, the chance that we will never be able to compensate them if we learn that they were innocent is <100%, maybe significantly less.  Thus the death penalty runs a greater risk of imposing unjustified harms on persons that we will be unable to compensate for later.
            Moreover, compensation as such isn't the only issue.  If we find out that someone in jail is innocent, we can let them out.  That’s not exactly compensation, but it’s something that certainly makes their life go better, and it’s an option we don’t have in the case of the death penalty.
            So, given this, I can’t see why you wouldn’t grant that the possibility of irreversible error carries some weight as an independent argument against the death penalty, force that it would lack (or that would at least be much weaker) against other forms of punishment.

          • Hyena

            As remarked above, this looks to become a general argument for punishments whose length are determined by our confidence in the conviction.

          • Anonymous

            Hi Matt,
            Everything you say is true as a matter of fact. But in my opinion its truth is simply a function of the nature of capital punishment, i.e. death. If you are committed to the justice of this penalty because (i) you are a retributionist, and therefore believe that the harshest penalty is deserved for the most heinous crimes or (ii) because you believe it deters future unjustified killings, then the fact that the death penalty involves death will not count as an argument against it.  As noted in my first comment, I acknowledge that there are other arguments against capital punishment.

            Obviously, cannot let an innocent person out of prison once you have executed them, but this is simply a consequence of capital punishment being what it is. It is not as if there is some independent reason, arising out of something other than the inherent nature of this punishment, that argues against it (e.g. death penalty juries are more likely to get the verdict wrong). So, this is why I do not grant that “the possibility of irreversible error carries some weight as an independent argument against the death penalty, force that it would lack (or that would at least be much weaker) against other forms of punishment.”

          • Conchis Ness

            Mark – you seem to have switched between two slightly inconsistent arguments here.

            1. All punishments are, in a sense, irreversible. Therefore irreversibility cannot be more of a problem for capital punishment than other forms of punishment.

            You now seem to accept Matt’s argument that 1 doesn’t work (there is a sense in which capital punishment is less reversible than other forms of punishment), and are now relying on 2.

            2. It inherent in the nature of capital punishment that it is irreversible, therefore irreversibility cannot be more of a problem for capital punishment than other forms of punishment.

            But this doesn’t really seem to work either. I suggest that there are no values of P and S, such that the following argument works: ‘problem P is inherent in solution S, therefore problem P isn’t really a problem for solution S’.

          • Anonymous

            Lete me try one more thing. NO criminal punishment should be enforced unless the system that administers it is reliable. In our country we try to ensure reliabiolity by requiring proof “beyond a reasonable doubt,” representation by counsel, appeals, etc. I endorse this standard for ALL criminal punishment. Jason’s argument seems to be that the death penalty involves some SPECIAL element of unreliability that makes its implementation morally offensive. I am only denying the force of this particular argument.

          • Conchis Ness

            Thanks, that’s helpful. It means you accept my #1, and are only denying #2. 

            It also suggests that what you are actually arguing is not that unreliability provides no argument against the death penalty, just that it provides equal weight against any other punishment.*

            I still think this is wrong, but at least I now have a clearer idea where. As far as I can tell, your argument still has two big problems. 

            The first is that even if you’re right that irreversibility is irrelevant, it still seems like unreliability should be a bigger problem for more serious punishments. To take an extreme example, assume I’m a judge, and out of every 100 people I convict, 1 of them is actually innocent. It seems obvious to me that this 1% failure rate is a much bigger deal if I’m doling out death sentences than if I’m slapping people on the wrist. This has nothing to do with irreversibility (both punishments are equally irreversible) – it’s just worse to kill an innocent person than it is to slap an innocent person on the wrist. As far I can tell, you do not address this argument at all.

            The second is that (at least in the most recent re-iteration of your argument) you still insist on ignoring the ex ante/ex post distinction, which is the whole reason ‘irreversibility’ is supposed to be relevant in the first place. Again, assume I’m an error prone judge and wrongly convict 1 out of every 100 people, but this time I have two punishments open to me: the first is handing out ‘Pills of Instant Death’, which as the name suggests, kill anyone who takes them instantly; the second is a magic pill that, when taken, kills murderers instantly, but has only a 50% chance of killing someone who’s innocent. In either case, once I’ve killed an innocent person they’re going to be irreversibly dead. But my mistakes are clearly a bigger problem in the case of the ‘Pills of Instant Death’, because they mean I end up killing twice as many innocent people as with the magic ones. 

            I’ll accept that it’s an empirical question whether an incorrect 20 year life sentence has any more chance of being overturned during its term than an incorrect death sentence. What I don’t accept is that whether it’s more likely to be overturned is irrelevant – which is what your argument seems to be claiming. (Apologies if I’m misreading you.)

            * For what it’s worth, I do that unreliability provides some argument against both the death penalty and life sentences.

          • Anonymous

            I will concede this much. At SOME level of unreliabilty the reversibility argument has relevance. To take an extreme example, if  you specify that 50% of death penalty convictions are erroneous, then there is some reason to favor sentences of life w/o possibility of parole over death. Here, the possibility exists that even after the 10-20 years of delay involved with capital punishment cases, additional people will be exonerated under the life w/o parole sentences.

            But in reality the percentage of wrongful convictions in death penalty cases is very low in my opinion, so you are only talking at best about a very small number of incremental exonerations under the life sentence scenario. If you believe that the death penalty is justified on other grounds, this will not sway you.

          • Conchis Ness

            We’re getting somewhere now – although you still don’t address the first problem noted above, which is probably the more important one from my perspective. (I’d suggest that killing innocent people is at least twice as bad as locking them up for life.)

            Out of interest, what sort of error percentage do you consider ‘very low’, and how high would it need to get before you’d reconsider?

          • Anonymous

            Sorry, at this point I don’t know what “the first problem” refers to.

            I believe the error rate is substantially less than 1%, but beyond this, I don’t know. I do think that the number of innocent persons convicted and not exonerated after 10-20 years, who are subsequently exonerated is very close to zero.

          • Conchis Ness

            The ‘first problem’ is the point that – although all you talk about is irreversibility –  irreversibility isn’t the only thing that distinguishes the death penalty from life imprisonment. Death is worse than life imprisonment, and killing innocent people is a greater injustice than locking them up, even if both are equally irreversible.

          • Anonymous

            Yes, death is worse than life imprisonment, which is exactly why its supporters think it is just. Because, (i) it is the only fitting punishment for the worst crimes or (ii) because it deters people from murdering others. Again, the fact that the death penalty involves death does not count against it if you support it for the above reasons.

          • Conchis Ness

            “Again, the fact that the death penalty involves death does not count against it if you support it for the above reasons.”

            You continue to ignore the crucial distinction between killing the guilty and killing the innocent. 

            The claim “it is justified to execute murderers” does not imply “it is justified to execute innocent people”. It is not ok to execute innocent people. Unreliability results in the death of innocent people in systems where the death penalty is available. Therefore unreliability provides an argument against systems where the death penalty is available (though not necessarily a dispositive one). 

            Saying that you think it’s ok to kill guilty people has no bearing whatsoever on that argument, because thinking it’s ok to kill guilty people doesn’t make it ok to kill innocent people.

          • Yes, exactly.  If an opponent of the death penalty were to object that the death penalty kills the guilty persons on whom it is imposed, the supporter of the death penalty would be quite right to respond, “Yes, I know, that’s the point – a feature, not a bug.”  
            But that’s not what we’re saying.  We’re saying that the death penalty kills the innocent persons on whom it is imposed.  And that is, presumably, not the point of the death penalty.  Pointing out that it is a truism that the death penalty kills those on whom it is imposed does nothing to respond to the force of this argument.

          • Anonymous

            Yes, but supoorters of the death penalty know this, and also know that there is a 10-20 year delay in its imposition, so that this informat-ion is already factored into the decision to support it.  It is an unavoida-ble and potentially negative conseq-uence of what the death penalty is. Whereas the argument against cap punish-ment I outline below is not inherent in the nature of the penalty. 

          • Conchis Ness

            This argument still seems fundamentally confused. Saying ‘X is an inherent problemwith Y’ implies neither that  ‘everyone who supports Y has already taken account of X’, nor that ‘X is not an argument against Y’.

          • Anonymous

            Final thought: Consider this argument. The death penalty as used in our society is immoral because it is applied in a discriminatory manner against African-Americans. If true, this is a very good argument, because even those who support capital punishment in principle should also demand its fair and equal administration. This argument provides a reason to condemn it that does not rely on the truism that the death penalty involves death, which quite obviously implies that it is not reversible.

    • “If the system is too unrelaible to condemn people to death it is also too unreliable to condemn them to life w/o possibility of parole or 25 years-to-life, etc.”

      This is correct, and we should strive to correct that as well. Or, at the very least, not hesitate to acknowledge that fact.

      How this follows as a rebuttal to an anti-death-penalty position, though, I cannot fathom.

      • It means that if someone is making that anti-death-penalty argument they are legally compelled to be anti-incarceration (and so on). That is a bridge too far for most. Most death penalty supporters would agree that we should try to correct our justice system so that it absolves the innocent and punishes the guilty.

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  • Interesting that there are libertarians out there who support the right of the State to murder. File that knowledge away for future use.

    • Anonymous

      There are indeed libertarians, known as minimal state libertarians, who support the existence of the state for the limited purpose of national defense and law enforcement. Part of the law enforcement function is determining the appropriate penalties for various crimes. As a matter of fact, most libertarian writers probably oppose capital punishment, but this is also true of most non-libertarians of a certain educational level. In other words, the pro-/anti- capitali punishment debate cuts across the libertarian/non-libertarian ideological divide. Feel free to make whatever future use of this fact you like. 

      • Anonymous

        I hear your defense, Mark, but Shane’s point is still valid. It is odd to be opposed to, say, taxation, even if imposed after all due process, because it is an infringement of property rights, but to be ok with the death penalty, even if imposed after all due process, even though it interferes with a much more important right. 

        • Anonymous

          So explain this to me. Say you just happen to be a minimal state libertarian who believes that capital punishment deters many more people from murdering others than it claims by way of innocent lives. Why on libertarian principles should that person be against the death penalty? What about the innocent people whose lives are saved by the deterrent effect of capital punishment. Don’t they have rights, including what you just called “a much more important right”?

          • You’re not a consequentialist about rights are you?

          • Anonymous

            Ouch!! You convinced me some time ago that at some point consequences count. I was looking here for an easy to grasp example. I see no reason why a libertarian can’t consistently support cap. punishment on deontological grounds. I don’t claim that Nozick supported the death penalty, but it is pretty clear that he was a retributionist when it came to punishment generally.

          • Anonymous

            Really? Nozick said that there were only three principles of justice. Clearly neither the first nor second principle would justify CP. The 3rd principle (restitution) couldn’t justify CP as the victim (assuming CP only for homicide) cannot be compensated for his loss. You may argue that he could put in his will that if he was murdered he would require CP but this doesn’t work in my opinion. You can’t simply demand what you are compensated regardless of the injustice (you can’t demand a £1,000,000 for a stolen phone) and so you cannot demand CP (because it isn’t compensating you, it is not returning you to your position before the injustice). 

            It does strike me as very odd that Nozick would support ‘punishment’ of any kind. Punishment is not restitution and Nozick very clearly believed that only restitution is a principle of justice.

          • Anonymous

            First, I was very careful in my comment to say that I was NOT claiming that Nozick supported CP, so you are arguing against something I never claimed. All I claimed was that it is “pretty clear” that Nozick was a retributionist on punishment, a position that I believe is grounded in what Nozick actually says in ASU, see especially pp. 61-2. Why don’t you review this portion of the text, and then tell me if you still disagree. A retributionist can support CP, but is not committed to that position.

            Nozick’s three principles of justice are introduced with the following language (p.150): “The subject of justice in holdings consists of three major topics” (my emphasis). The point is that the entitlement theory of justice does not purport to address all moral issues, but only those relating to property. It doesn’t deal for example with abortion, CP, and what we owe our fellow humans as a non-enforceable moral obligation. Accordingly, the principle of rectification is not the basis for Nozick’s theory of punishment.

          • Anonymous

            But that’s precisely the problem. Libertarians are not concerned with ‘ordinary morality’ but rather political morality and they equate (mostly) this political morality with a system of property rights. If none of Nozick’s three principles support CP then as a libertarian Nozick could not support CP. Sure, he may have had some other deontological grounds for CP (people deserve it etc) but this has no more relevance to his views on political philosophy than his response to the Gettier problem.

  • Anonymous

    What about posses, lynch mobs, or lone vigilantes?  Or where capital punishment is “left to the states,” some of which do execute?  Is it better for a federal system to override the wishes of the states and prevent capital punishment, and also prevent non-governmental groups from executing capital justice?  Is the argument that no one, the federal state or any other government or person, can execute capital justice and other means of preventing this are acceptable?

    • Anonymous

      The latter.

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  • Anonymous

    Is there a difference between the justifiability of a system of punishment vs. the legitimacy of a punishment in particular cases?  I am not supporting the death penalty, just taking part in a discussion.  So here comes the dreaded “suppose …” 

    Suppose millionaire CEO Mr. X videotaped himself raping, torturing, and murdering 25 children (children of his exploited and impoverished employees).  He is put on trial in the U.S., defended by the best attorneys money can buy.  He testifies that he did it because “I am rich and can do as I please.  In fact, I sent the videotape to their parents, my employees, to remind them just whose in charge.”  Mr. X is found guilty and sentenced to death.  Suppose for the sake of argument that he “deserves to die” as you assumed above, and the criminal system is exactly how it is today.  What result?

  • Anonymous

    You are certainly correct that the outcomes of many of our criminal cases is deplorable. Personally I would rather we get back to the standard of “better 10 (9, 12 whatever the quote is) guilty go free than one innocent be punished”. That sentiment doesn’t really fit the general culture of “the state/government” is suppose to take care of things and the citizens take less and less personal responsibility for themselves.

    This doesn’t really get us to the question of the state having such a right. Libertarians should be saying, the state can have no more right to kill a person than an individual. If so, we need to consider the situations in which a person has such a right — which probably requires we consider when a person has put them self into some position where they no longer have the protection of rights in keeping their own.

    • Anonymous

      In most cases, this would be limited to imminent self defense or defense of others, right? I.e., the state could and should use deadly force to stop an armed robbery in progress (if there are no other reasonable nonlethal alternatives) but not after the armed robbery is in custody and poses no further threat to anyone? 

      I guess what I am asking is whether  the libertarian view you are proposing necessarily rejects the retributionist justification for the death penalty? 

      • Anonymous

        I’m not sure it rejects retribution flat out, but I do think that’s something that requires a lot of thought. 

        On the other side, whether this falls into retribution or something else, the idea that reciprocal behaviors, I respect your rights and you respect mine, suggests that those who reject such social behavior and act with extreme disregard for others, such as killing others for unjust reasons, may well be giving up their claims on others to afford them such rights as that of life. f course this gets into complicated areas such as where rights originate and things like that.

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  • Anonymous

    You dont have to have smart angels, you just have to be reasonably competent. American government is far from even that generous standard.

  • Even if we (Americans) had a perfect criminal justice system I don’t think CP would be justified. Even if someone deserves death this has no relevance to whether it is just. After all libertarians reject desert (as yummy as it is) as a criterion of justice and it is justice that we are concerned with.

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  • Anonymous

    I am intrigued by what is not being said here. For starters, neither retribution nor deterrence are very interesting to me. The former is an extremely slippery concept that I would fear to see incorporated into law, and the latter, as it bears no relationship to any specific individual or crime, could not justify any action that was not already justified by other means. (Executing random innocents would not become justified, simply because it happened to deter murderers; deterrence does not weigh morally at all. It can still serve as a practical reason, however, to choose execution when execution is already justified.) No, the foremost purpose of a death penalty would, in my mind, be its economic efficiency. The state is obligated to go far out of its way in the issue of finding guilt, an fairness obligation that it bears to criminal defendants as to all other persons. But it has no obligation to go far out of its way in the issue of prevention. Once a person has been found guilty of murder and it has been deemed necessary to permanently separate them from the public for the public’s protection, is the state obligated to spend $2 million to accomplish this separation via lifetime incarceration, when it could spend just $2,000 instead via execution?

    This blends into the second thing that intrigued me: people questioning why libertarians would invest the state with the authority to execute people. Quite simply, they would do so if they believe that individuals have the authority to execute people but don’t want them to be doing so privately when an impersonal justice system is available. If I am living in a state-less frontier society and capture a man attempting to murder my neighbor’s children, I do not have to keep him in my basement for the rest of his natural life, feeding and clothing him and providing him with health care. After a succinct investigation of the facts I am within my rights to simply shoot him down.

    To the point of the post, however: the death penalty as practiced in the United States is not more economically efficient than incarceration, but remarkably the reverse. So in our current system my argument from economic efficiency cuts the opposite direction, and suggests that we should avoid the death penalty. Furthermore, while my frontier-dwelling double has no incarceration infrastructure on which to rely, we do. And while I may not owe the guilty murderer his $2 million lifetime incarceration cost, it may well be worth several such sums to refrain from killing the occasional innocent, particularly in a society as affluent as our own. A society might choose to say, “In recognition of the fact that some of you, though convicted, are truly innocent, we will take no more from you than is  necessary to secure the public safety, even though it costs us a great deal of money.” This also helps to smooth over other moral issues that arise for some people, such as an obviously guilty person’s childhood abuse. Protecting the public from a murderer is justified no matter what the background of the murder; if we go no further than necessary to accomplish this easily-justified goal, then we do not have to address further moral topics at all.

    So, I believe that death penalties are sometimes justifiable but I am not practically in favor of them in our society as it exists today. Note that this stance is unrelated to the current state of our justice system, though I agree with Jason that the system leaves much to be desired.

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  • Anonymous

    What’s often left out of these debates is whether humans actually possess libertarian or contra-causal free will.  If they don’t as many philosophers and scientists believe then the death penalty is even more ridiculous.

    Libertarians and anarchists tend to be irreligious (at least from my experience) yet many seem to be the most ardent defenders of libertarian free will, which from my perspective looks to rely heavily upon religion or religious ideas.

    Hard determinism or hard indeterminism (less common) are practically never discussed outside of academia even though their impact on how we view ourselves would be radical.

    I know Godwin (arguably the first anarchist) was a determinist.  Are any of you here and if so how does it affect your libertarian views?

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